Although Digital Millenium Copyright Act (DMCA) is a part of copyright law, technology companies and content owners use the law to attempt to monopolize the market and control the aftermarkets. This effectively creates a new business model out of exploiting the DMCA that has met little challenge in the courts. Progress is the spirit of copyright law, and this is something that finds itself severly limited under the DMCA. This project provides not only the law itself, but also court cases in which the DMCA is challenged as well as articles that desmonstrate how various companies exploit the DMCA because it is beneficial to them to have control of their products and the aftermarket, as is shown in the article about Apple and RealNetworks. The DMCA has changed what copyright law is used for, and denies the pricnciples that copyright was founded on. It is a new way of doing business that benefits the technology companies instead of public interets.

This article explains the DMCA as well as looks at current challenges to the act as well as relevant court cases. The first section of the article outlines the history of the DMCA and how it came to be. The DMCA added six new sections and two chapters to the 1976 Copyright Act. The anti-circumvention clauses prevent people from copying copyright protected works and from trading methods to circumvent copyright protection. These provisions are more for the content industries than the ISPs. This first section prohibits breaking any kind of encryption or copy-protection the second and third sections prohibit the trafficking of any methods or devices that break or circumvent copy-protection that controls access or targets use of the copyrighted material. The article then goes on to talk about the developments of the anti-circumvention laws. The author states that courts have not gone beyond protecting the content industry’s products beyond their original scope. This prevents durable goods markets from monopolizing their industry. The author gives example of the Lexmark v. Static Control Components (SCC) case. This is a case where Lexmark tried to prevent the sale of third party refurbished toner cartridges that could be used with Lexmark printers. The chips that SCC developed allow the third party cartridges to interact with Lexmark’s copyrighted software. The court ruled against Lexmark and established important DMCA liability precedents. The copyrighted work must first of all qualify as protectable and there has to be a security device that protects copying without permission. The author then moves to the constitutionality of the DMCA, again citing relevant court cases that have challenged the act. The third part of the article then addresses the safe harbor portions of the DMCA, which were put in place for the ISPs. This section begins with a background and description of the safe harbor provisions. The next section of the article provides information about notice requirements and provides court examples. The Hendrickson v. Amazon.com case is used to show the responsibilities of each side in using the safe harbor rules and infringement notices. The next section looks at threshold eligibility and again uses a court case to help define this part of the DMCA. The last two sections of the article look at how safe harbor is not the only refuge that ISPs have when it comes to copyright infringement as well as cease-and-desist letters and how they work with ISPs and the DMCA.
This article is important in defining the anti-circumvention and safe harbor parts of the DMCA. It helps provide an understanding to laws that are very complicated in their wording. It also shows legal challenges to the DMCA. The Lexmark case is an example of a hardware company using software to try and monopolize its segment of the industry. Lexmark would profit greatly if its cartridges were the only ones that could be used with its printers. The court, however, stopped Lexmark by ruling that its program was not covered under the DMCA because it left other avenues to accessing its software open. A company tried to use the DMCA as a way to profit in an aftermarket, using copyright law to profit rather than the reasons the law was created, and was stopped by the courts.  I will use this article not only as background information for my paper as well as an example of how the courts have to regulate companies so they do not exploit the DMCA and copyright in order to monopolize a market.

This article looks at how the DMCA provides a super-monopoly that is a viable method of doing business and bypasses the inconveniences of copyright and patents by protecting things that were once allowed. The article analyzes current court cases and shows how they have yet to rule out the so-called super-monopoly that the DMCA allows. The first section of the article explains the DMCA and what it does. It also explains how companies use the first part of section 1201 (1201 (a)) as a means of monopolizing their market. The first case that the paper examines is Lexmark v. Static Control. Lexmark makes their money through the after market sales of their toner cartridges and replacement parts. However, there are many companies that sell toner cartridges that are Lexmark compatible. Lexmark created a Printer Engine Program to combat this and make their cartridges the only ones that work with their printers. This copyrighted software works with a chip in the toner cartridge and prevents the printer from working with any other cartridge or with an empty cartridge. Static Control is a company that sold chips to companies that refurbished Lexmark Cartridges. These chips allowed the cartridges to be accepted by Lexmark’s software control program. The courts first ruled that Static Control violated the DMCA. The appeal overturned this decision because of failures with Lexmark’s software and the fact that they were not encrypted or necessarily copyrightable. The programs that Lexmark used only protected one type of access, and left other methods open. The second legal example is The Chamberlain Group vs. Skylink. Chamberlain wanted to control the garage door remote control market and sued Skylink over a remote control that opened doors with a digital security feature. The court ruled in favor of Skylink because the unauthorized copying that Chamberlain sued under did not involve copyright infringement, so it was not covered by the DMCA. The next section of the paper outlines how you can effectively create a super-monopoly. The first strategy is to copyright the software for the product and its replacement pieces. A part of this software has to contain a secret code that unlocks the main software. The second tip is to write long and inefficient programs. These programs are more likely to be copyrightable because they have original expression. They are also harder to reverse engineer and cannot be used because they are the most efficient. The third suggestion is to include non-functional code in the program so there is evidence if another company directly copies your program. The fourth way is to encrypt copyright programs. This prevents people from accessing the program itself. Fifth is not making the “key” dependent on the entire program in the parts. Code inputs should be stored elsewhere on the chip. The sixth and seventh methods are avoid licensing that allows continued use of copyright programs and sell the main unit and main program separately. The article concludes that the DMCA allows companies to monopolize their aftermarket.
This article is a good example of how the DMCA can be manipulated in a very effective manner. The DMCA is a tool that creates a new business model of monopolization, and this article is evidence of that. The court cases show how the courts have not ruled on the DMCA itself, they have only applied it to situations. The paper outlines how to avoid loopholes and make your business plan sound under the DMCA in order to create a monopoly. The DMCA has clearly created a new way of doing and controlling business that is contrary to the original intentions of copyright law.

This article examines the failures of the DMCA triennial rulemaking at protecting consumers from exploitation.  The evaluation of exemptions to the DMCA every three years is the acts “fail safe” measure to prevent consumers’ rights that copyright law gives them.  However, the article argues that this fails and congress needs to rethink the DMCA.  The exemptions to the DMCA can only be on reasons why someone can circumvent the technology, not on methods of circumvention.  These exemptions are also extremely limited in their scope, thus the general public will rarely fall under the exemptions.  It is also extremely hard for the average consumer to lobby for an exemption to the DMCA.  It is a long process that involves extensive legal work and heavy burdens outlined by the Copyright Office.  The article continues to outline the extensive process of participating in the 2006 exemption process.  This serves to demonstrate that this is not an easy task for a general member of the public to undertake.  One generally needs extensive legal and technical expertise. The Copyright Office is also very strict about their requirements in regards to evidence, further complicating the exemption process and alienating the average consumer.  The matter gets worse because of the Copyright Office’s refusal to exempt anything if unprotected formats still exist.  The Copyright Office also does not care about the effects of DRM on legal activities.  They regard things as “mere” inconveniences.  Consumer activities are also not important to the Copyright Office.  The Copyright Office also assumes that the copyright holders would withhold technology from the free market if DRM did not exist.  All of this demonstrates how the Copyright Office places consumers at the bottom of the food chain.  The next section of the article looks at the effects of the DMCA on fair use.  The article argues that fair use is there not only for the consumers, but also as a way for the courts to regulate copyright law in terms of new technology.  The DMCA blocks the court from looking at fair use and prevents people from acting in ways that they legally could under the 1976 Copyright Act.  In an age of new technology, it was once the responsibility of the courts to assess fair uses of new technology and media, but now this is ruled by the DMCA.  The Copyright office is essentially making decisions that Congress gave the courts the power to decide.   The article accuses the Copyright Office of being backward looking as opposed to forward looking, as copyright intended.  The last section of the article gives suggestions of what should be done in order to remedy these problems with the DMCA.
    This article is an example of how the DMCA actively denies consumers rights afforded to them by copyright.  The DMCA does not consider the consumer like copyright law does.  It looks past them as “mere inconveniences” and favors larger companies and content holders.  This shows how the DMCA works more for larger interest and denies the founding principles of progress that are embedded in copyright law.  The DMCA has changed the face and nature of copyright and has the potential to go further.   

This is Title 17. Copyrights, Chapter 12. Copyright Protection and Management systems. Section 1201 outlines the circumvention of copyright protection systems. It focuses on what violates the circumvention part of the act. This part of the DMCA states that you cannot circumvent a technological measure that exists to control access to copyrighted work that is protected by the DMCA. This part of the DMCA also makes products that circumvent copyright protection illegal. It states that you cannot make, trade or sell programs that are primarily designed to circumvent copyright protection, such as programs that break encoding and that do not have any commercially significant use outside of circumventing copyright protection technology. The section then goes on to define what the word circumvention means in this context. One cannot create something that disarms any protection on the copyrighted work without permission of the authors. Examples such as decrypting and descrambling are given. The section also states that this does not violate and rights that come with copyright including fair use and free speech. The chapter also provides exemptions for nonprofit libraries, archives and educational institutions to the first provision of the chapter with limitations. The chapter then goes on to look at reverse engineering and encryption research. These articles outline the legalities of circumventing copyright protection to analyze its flaws among other things. There are allowances for good faith testing and research in some areas, although they are limited. The end of the document gives a history, notes and definitions of subjects that are part of the act. It also cites relevant cases that have challenged the DMCA, its stipulations and its legalities.
This is the section of the DMCA that many hardware manufacturers are using to create software that is copyright protected and is the only software that the hardware can be used with. This is the law that allows small monopolies on the market to exist until something new is invented or the monopoly is challenged by law. This section of the DMCA allows for copyright protected material to be impermeable to circumvention. This is an important part of the DMCA and is one that draws a lot of attention both in and out of the legal system. It has, in some ways, created a new business model and a new way for companies to enter another market by exploiting the copyright protection and anti-circumvention clauses. It allows companies like The Chamberlain Group to try and block the market and control it by claiming copyright infringement. It also allows hardware companies to enter the software market because they create hardware that can only be used on their copyright protected software platforms. Although a lot of this has not held up in court, when challenged, it has become a popular way of doing business and entering into a new market. This part of the DMCA is the backbone of my paper. I will analyze its words to show how it allows for companies to attempt to monopolize markets and control aftermarkets. I will also suggess that it needs to be ammended because although the courts have limited the attempts of some companies to control their market and aftermarkets, the DMCA is still open to exploitation because the court rulings do not create any legal precedents that go against the DMCA itself.

321 Studios is a company that produces a software program that can be used to back up DVDs. 321 claims that their product does not violate the DMCA because it has substantial non-infringing uses. The beginning of the document gives technical background on what a DVD is and how CSS encryption works. It also gives information on the companies involved in the lawsuit. 321 Studios filed the suit to prove that their software does not violate copyright law. Next, the document presents the legal standards for a motion of summary judgment, a motion to dismiss and rule 56(f). The first part of the discussion looks at recent, related cases (Elcom and Corley) involving the DMCA. The next section examines the wording of the DMCA and how one is liable under the act. Next is the Studios’ argument as to how CSS is a valid form of encryption and is protected by the DMCA. The court agrees with the Studios despite 321’s point that it is not an effective lock because decryption keys are widely available on the Internet. The following section outlines the arguments as to why 321’s software violates the DMCA. 321 argues that they circumvent the encryption within the law of the act because their software only works on original DVDs and the people who purchase these have the right to break the CSS. The court rejects this argument, citing a previous case (Corley). The next parts of the argument are about 1201 (b)(1). 321 claims that CSS only prevents access to, not copying of, DVDs, so they are not in violation of the DMCA. The court says that 321 misunderstands the statute and they are in violation because they sell a product that breaks encryption. 321 also argues that they are not in violation because the main use of their software has nothing to do with the DMCA or breaking CSS because it can be used to copy DVDs in the public domain. 321 also claims they do not circumvent CSS because they use a licensed key to unlock the encryption. The court rules that the part of the program that breaks the CSS is in violation of the DMCA. The court also finds that 321 is in violation of the DMCA in the way it markets its software and because it is made primarily to circumvent encryption. The court also says that the DMCA does not violate 321’s freedom of speech and first amendment rights or exceed Congress’ power. The court refers to the cases it cited earlier in the brief in this part of the discussion. The court orders an injunction against 321’s software. The last sections deal with the counterclaims and smaller issues of the lawsuit.
This case is another example of companies, in this case motion picture studios, using the DMCA to control a market. The case looks at the DMCA and is one that argues about its constitutionality. The court uses precedents like Corley in its ruling in favor of the DMCA, saying the law is constitutional and it is within the powers of Congress. This case is one of the earlier cases regarding DMCA and control, and since it deals directly with the DMCA, it is an example that goes against my thesis. The court, here, clearly decides a case using the DMCA and does not find issues with it as an act. It allows the studios to maintain the control over DVDs that they want. The DMCA is used to help and monopoly.

    This article is a guide to how DRM controls the market place.  The article shows how music services that consumers pay for give their customers less than they promise because of copy protection and the DMCA.  The guide explains the restrictions of various music services and how the services cover these up through marketing.  The first service is iTunes.  Even though you purchase the music through Apple, iTunes can change the DRM whenever they want, thus they can change and limit what you can do with music that you own.  Apple also limits first sale, backing up, remixing, player compatibility and format conversion.  Even though you own the song, the DMCA allows Apple to control the music that you purchase and restrict your uses of it.  
Microsoft’s “Play for Sure” claims that Windows Media Player’s DRM allows you to choose your music and devices.  However, there are still severe restrictions because of DRM.  There are very few players that are compatible to play with the WMA DRM format.  If you want to use a player that does not support WMA content, you have to repurchase your library of music.  Even though Microsoft markets their DRM as user friendly and non-restrictive, it is more to make DRM a norm than the truth of the matter.
RealNetworks markets their services as compatible with any MP3 playing device.  This in fact is not true, because music purchased through RealNetworks only plays on devices that support their DRM or the WMA format, thus limiting the players that the songs can be played on and restricting use of their music. RealNetworks, like iTunes, limits the number of times you can burn a song as well as the number of backup copies that can be made.  They reserve the right to modify their DRM and what it controls.  RealNetworks also does not allow reselling or remixing songs purchased through them.
Napster 2.0 advertises itself as a service that allows you to have all the music you want in anyway that you want it.  It offers three services and all charge more for uses that were once free.  Napster Unlimited allows you access to all the music you want until you stop paying the monthly fee.  You also have to pay if you want to put it on a device, which can only be one that supports WMA.  It also costs money to burn it.  The DRM restrictions can change, you can only backup a limited amount of times and burning is restricted.
    I will use this article as an example of how companies use DRM to exploit the music market place.  Each service limits the music they sell so that it can only be used with products that they license.  They also limit what a person can do with the music, even things that are traditionally acceptable under copyright law such as making back up copies and the first sale doctrine.  This article shows how the DMCA changes traditional copyright laws and allows companies to exploit their customers.

This is suit that Lexmark International, Inc filed against Static Control Components (SCC), Inc. It is the appeal case, where the court overturns the findings against SCC. Lexmark claims that SCC violates the DMCA by selling printer toner cartridges that work with Lexmark’s printer engine program. Lexmark claims that SCC’s chip violates the DMCA and federal copyright law. Part I A of the case provides a description of the companies and the computer programs and how they work. It also explains Lexmark’s toner cartridges and the chips manufactured by SCC. Part I B is a summary of the proceedings and findings of the district court. Section II says that the district court abused its power and outlines four criteria that have to be fulfilled in order to uphold the preliminary injunction. Part III is the beginning of the decision. The first part of the decision outlines the laws that relevant to the case and what each side has to prove in order to win. The court uses the idea-expression dichotomy and other copyright principles to find that one part of the software, the Toner Loading Program, is not copyrightable. The court also states three errors that the district court made in its ruling on the issue of copyright infringement by SCC. The district court was mistaken about what is protectable and what is not when it comes software copyright. Part C of the decision assesses Lexmark’s counter arguments that support the ruling of the district court. Part D comments on the district court’s response to SCC’s fair use arguments, even thought they were irrelevant because the Toner Loading Program is not copyrightable. The court says the district court was right in the four factors SCC had to have for a successful argument and comments on these. Section IV of the decision looks at the DMCA element of the case. Part IV A looks at the laws and what claims the parties make under these laws. Part B says that reading the printer’s memory, not only by the code, can access the Printer Engine Program because it is not encrypted. Since no security device has to be circumvented to get to the code, SCC is not in violation of the DMCA. The rest of this section looks at Lexmark’s case and responds to it. Part C states that the SCC chip does not provide access to the Printer Engine Program, it instead replaces it. Part D addresses the district court’s assessment of SCC’s case because it could become relevant. The court vacates the preliminary injunction and orders further proceedings.
This case is relevant to my paper because it shows how companies attempt to use the DMCA to prevent aftermarket competition. Even though Lexmark fails, the courts ruling has nothing to do with the DMCA and its wording, rather it is about technicalities in a sense. Lexmark lost its case because one of its programs cannot be copyrighted and the other was not encrypted, not because of interpretation of the DMCA. Even though there are court cases regarding the law and its uses, they are not effective in setting precedents or helping with DMCA interpretation.

This article argues that the DMCA instead of serving public interest and content holders. The author claims the DMCA exploits consumers and their legal purchases and he offers alternatives to the act. The author questions if the DMCA will really help create a “global digital on-line marketplace for copyrighted works” or if it just a slow response by Congress to the digital age. He also asks if the new marketplace will be beneficial to the consumer or to the companies who try to take advantage of the DMCA. The author looks at archival use and the first sale doctrines. He argues that the DMCA renders these provisions of the Copyright Act of 1976 moot. One cannot make archival copies of a DVD because to break the encryption violates the DMCA. The second part of the paper analyzes the 2001 report done by the Copyright Office on the DMCA. Most people interviewed for the report found that the DMCA limits the concept of the first sale doctrine that has been a part of copyright since 1909. The problems come with encryption and the regional coding of DVDs. The argument is that the DVD encryption that will only allow DVDs to play on licensed players limits the first sale doctrine and was a reason that people would not buy DVDs. This is thus, a way in which consumers are exploited and forced to buy licensed DVD players. The author argues that the commercial rights are restricted not by market forces that are natural, rather by the manufacturers. The report issued by the Copyright Office calls the arguments against the DMCA “without merit.” The DMCA disallows any secondary markets. The paper then turns to archival copying and critiques how the DMCA prevents this legal right under federal law. The next section of the article is case studies that further examine the claims the author makes against the DMCA. The first one is about the first sale doctrine. The example is when Linux users cracked the CSS encoding on DVDs so they could play on a Linux platform, which was followed by a lawsuit led by Universal. This case set the precedent that non-infringing uses for breaking encryption was not a defense against the DMCA. The next case is about video game archiving. Here, one example is given of a suit where the copier for archival purposes lost and one where archiving won. The difference was the proof of other non-infringing commercial uses of the copying mechanism. The third example is another court case that violated the DMCA in creating a technology to circumvent copy protection. The third example in this section deals with criminal charges for breaking encoding on an Internet book. The last case study deals with taping TV shows. This section questions the future of TV with the possibility of copy-protecting HDTV broadcasts. These examples show that copyright is no longer for the good of the people, and rather helps create monopolies under the DMCA. The article also claims that the case studies show the fallacies in the Copyright Office’s report and that things like the first sale doctrine and archival copying are in jeopardy because of the DMCA. The last section of the paper proposes the author’s possible alternatives to the act.
This article demonstrates how the DMCA creates a new business model through copyright. Copyright does not function as it once did; rather, the new provisions of the DMCA make copyright law an avenue to monopoly. This article proves that the nature of copyright has changed and the things that are no longer allowed under the DMCA give a virtual monopoly to the content owners and manufacturers. This is the beginning of companies turning to copyright to corner or break into a new market.  I will use this paper as evidence for how the nature of copyright has changed and it is being used as a means to monopolize a market rather for the good of the people, as it was intended. 

This case is the appeal of the suit that The Chamberlain Group, INC. brought against Skylink Technologies, INC over garage door remote controls. Chamberlain claims that Skylink Technologies violated the DMCA because they manufactured a remote that can open garaged doors made by Chamberlain that use a “rolling-code” technology. Chamberlain filed suit against Skylink for both copyright and patent infringement, stating that the Skylink device is a “circumvention device” that goes around a code and thus violates the Circumvention of Copyright Protected System section of the DMCA. Chamberlain argues that the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The rolling code feature in the Chamberlain garage door openers is a computer program that changes the code that allows a person to open the garage door. The Skylink device does not use this code; rather it circumvents it and allows the door to be opened. This rolling code is copyrighted and Chamberlain asserts that the Skylink garage door opener circumvents this code, and therefore violates the anti-circumvention clauses of the DMCA. Skylink’s model 39 garage door opener simulates the rolling code used in Chamberlain’s models. However, the court did not agree with Chamberlain and ruled in favor of Skylink. The court decided that Chamberlain could not prove that Skylink developed the model 39 in order to circumvent the rolling code technology and that the model has little commercial value outside of this purpose. The model 39 can work with other garage door units, not only Chamberlains garage doors with rolling code security. The court concludes that the DMCA does not provide new property rights. The court claims that Chamberlain did not show how access provided by the model 39 transmitter constitutes infringement.
This case deals with aftermarkets and monopolies. Universal remote controls for garage doors are often purchased as replacements or backups to the devices included with the garage door on initial purchase. The aftermarket for these devices then becomes a lucrative market for those who provide replacement garage door openers. Skylink makes universal remotes that work with many different brands and models of garage doors. Chamberlain, a major garage door manufacturer sells replacement remotes for its products. However, Skylink cuts into Chamberlain’s aftermarket profits with its universal remotes. The DMCA protects circumvention of any copyrighted work, such as the rolling code in Chamberlain’s claim. However, this case is more than just a copyright infringement case, because it has larger significance in the marketplace. If Chamberlain had been able to win their case and make the model 39 illegal because of DMCA infringement, it would then give them more control of the aftermarket by taking away the competition of universal remotes. This case is an example of how companies are turning to copyright and the DMCA in order to give themselves control of a market. Copyright is being used to help give companies a monopoly in the area of the market that they want to control. I will use this case as an example of a company trying to exploit the DMCA in order to control a market.  It shows how copyright law is exploited by a manufacturer and then put into place by the courts.  The major point is that the courts do not find anything wrong in the DMCA, just a lack support by the plaintiff.  This shows that the DMCA is still open for exploitation, and this trend will continue.